Broadcasters Treaty, Access to Knowledge & Other Issues

In past I’ve blogged about the WIPO Broadcasters Treaty (the Treaty) and my recent piece in the Wire dispels some of the myths surrounding the Treaty. Due to length restrictions, I could not delve at length on the misconceived notion of the Treaty blocking access to knowledge. In this post, I will rebut the recurrent sentiment about the Treaty restricting access to public domain works and some other ancillary issues.

Does the Treaty grant additional rights to broadcasters in public domain works?

Critics of the Treaty contend that by granting an ‘additional layer’ of rights to broadcasters, the Treaty restricts access to its underlying content. This argument emanates from a confusion between the use of the signal with the use of the content. The mandate of the 2007 General Assembly clarified its strict adhere to a ‘signals- based approach’, for ensuring that broadcasters are not granted an ‘additional layer’ of rights over the broadcast content.

This is clearly reflected in the latest text of the Revised Consolidated Text on Definitions, Object of Protection, and Rights to be Granted. Paragraph II (1) lucidly states that the protection granted under the Treaty shall extend only to ‘programme – carrying signals’ and not to the underlying programmes (content). A programme – carrying signal is an electronically generated carrier embodying a programme as originally transmitted and in any subsequent technical format. The text then defines ‘programme’. A plain reading of these two definitions and the object of protection makes it aptly clear that it is only the ‘signal’ (or rather only the linear signal) transmitted by the broadcasting organizations that is the subject matter of protection.

The broadcast content is NOT and cannot even be the subject matter of protection since it is within the umbrella of ‘copyright’ and not ‘neighboring rights or related rights’. A ‘signal’ is not intellectual property (copyright) sensu stricto as it befalls the classic characterization of IP. Moore defines IP as a ‘non-physical property that is the product of cognitive processes, the value of which is based upon some idea or collection of ideas’. Though, a ‘signal’ is a non – physical property, it is not the result of a cerebral process which is premised upon an ‘idea’ or ‘collection of ideas’.

Admitted that the signal transmitted by a broadcaster is not the product of creative thinking, it is worthwhile to point out that broadcasters entail significant financial investment in the acquisition, production, scheduling and transmission of the signal (which is not quite an ‘un-extraordinary signal’! We would not be able to watch FIFA or the World Cup, had it not been for this ‘un-extraordinary signal’).

The rationale for protecting a broadcasters signals is the same as that for safeguarding a phonogram producers entrepreneurial initiative for producing a phonogram, which is distinct and independent of the copyright in the musical work contained in the phonogram. Similarly, a broadcasters signal protection right is entirely exclusive and independent of the broadcast content.

In this vein, a broadcaster cannot exercise any rights over content which is independent of the broadcast. A broadcaster cannot (and should not) curtail a third – party’s right to use a public domain material from its original source. Say for instance, copyright in the movie The Little Mermaid is held by Disney and ABC has the broadcasting rights to it. After the expiration of the copyright in the movie, it will fall into the public domain. Any third party will be able to freely use the movie once it has fallen into the public domain. However, for using only the broadcast of the movie, a third party will have to buy the rights from ABC till the time the broadcast is within the term of protection (currently either 20 or 50 years as per the Draft Text of the Treaty). After the expiry of the term of protection over the broadcast, a third – party will be able to use even the broadcast (as originally held by ABC) freely.

For other public domain works such as news, limitations and exceptions would come to rescue. The recent text of the Working Document gives three alternatives for limitations and exceptions. Alternative A would be ineffectual as the stated uses of the broadcast is dependent upon the use of the content. For example, use of short excerpts for reporting current events is recognized as an exception under Article 10 (1) (ii) of Alternative A of the Treaty but not under a member states copyright legislation. This would mean that even though a third – party is permitted to use the broadcast, the use of the content can still be prohibited by the copyright owner, rendering the broadcast meaningless. Hence, national delegations should think towards adopting either Alternative B or Alternative C. Personally, I’m in favor of Alternative C due to its expansive scope. However, it is unlikely that it will receive the support of other delegations particularly the EU.

Opponents of the Treaty argue that the Treaty curtails the rights of content owners by restricting their ability to license their works to third – parties. This again stems from a commingling of copyright over the content and the protection over the signal. A content owner would continue to retain the right to license its works to third parties including in the broadcasters territory till the time it does not conflict with the rights granted to the broadcaster over the content. As a matter of fact, this is purely a contractual matter and not within the purview of the Treaty.

Further, due to the independent nature of the underlying content from the signal, content owners (rights holders) would continue to act in their independent capacity against pirates and other parties who infringe their content. In a way, the Treaty only reinforces the rights of content owners over their content. By having a right to seek injunction, broadcasters would be able to stop the infringement of the broadcast; which automatically stops the unauthorized use of the content. The right of broadcaster to act against pirates shall solely lie for the infringement of its broadcast and not the content (which rights vests with the rights holder/content owner).

Opponents of the Treaty have contended that the implementation of the Treaty would require the content users to pay license fees to broadcasters in addition to copyright owners; which in turn would lead to reduced revenues for copyright owners. This is an absurd argument to say the least. Firstly, this is purely a contractual issue, outside the scope of the Treaty (I wish to reiterate that the subject matter of the Treaty is only the ‘signal’). Secondly, why would a third party seeking access to the broadcast pay a license fee to the content owner? Any rights in the content acquired by the broadcaster from the content owner shall be paid for by the broadcaster. It is only when the third – party seeks access to the content, independent of the broadcast that it will be required to pay the license fees to the content owner. This argument of the Treaty’s opponents holds true only when the broadcaster is even the content creator. In this situation, the license fee would be governed by the contractual terms subsisting between the user and the broadcaster and shall normally be a one – time consolidated license fee (though exceptions subsist).

Lastly, as much as the critics of the Treaty may rant, it has found support even amongst the rights holder. As per a 2007 Joint Statement of Rights Holders representing authors, music publishers, performers, phonogram producers and film producers; rights holders have expressed their support for the Treaty provided it does not jeopardize their rights in the content and preserves the obligations and flexibilities as enunciated in other international treaties.

Will the implementation of the Treaty make the copyright clearance process complicated?

Critics of the Treaty have opined that the implementation of the Treaty will make the copyright clearance process unduly complicated due to the addition of broadcasting organizations as new rights holders. For the sake of clarity, new rights holders are only being added as regards the broadcast and not the underlying content. Broadcasting organizations will only hold the broadcasting rights and not the copyright in the content unless it is the content creator as well. Hence, for accessing the broadcast, a third -party will only have to approach one rights holder i.e the broadcasting organization. Any rights to the underlying content shall solely vest with the copyright owner and a third party shall be free to license the content independent of the broadcast from the copyright owner.

Conclusion :

The Treaty’s aim is not (and should not even be) to create para – copyright like protection for broadcasting organizations. In this vein, as I’ve repeatedly maintained that the Treaty is perhaps the only IP treaty till date which is bereft of the classic North – South divergences. Hence, the political stalemate over the key Treaty provisions in the past two SCCRs is preposterous.

A Treaty with adequate safeguards is an absolute must for the Indian broadcasting industry to flourish in the years to come. In this vein, I hope that India and other stakeholders wholeheartedly support the Treaty; albeit not at the cost of national interest.

COPYRIGHT POLICY

1. As an ardent supporter of the open access movement, the author does not assert any proprietary rights over the content for lawful non-commercial usage. However, due attribution and appropriate link back to the original content will be appreciated.

2. Due to the mammoth research effort involved in writing a post, usage beyond "fair use" and for "commercial purposes" is strictly prohibited albeit author's express written consent.

3. Users are urged to be mindful of third party proprietary rights in the content (including images, if any). In case of confusion, kindly contact the author at ssharma2@law.gwu.edu for clarification on "third-party rights". Clarification on the meaning of "third-party rights" WILL NOT constitute binding legal advice.